Central Administrative Tribunal - Delhi
Sh.P.S. Sharma vs Govt. Of Nct Of Delhi Through on 5 March, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2019/2011
Reserved on : 27.02.2012.
Decided on: 05.03.2012.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh.P.S. Sharma,
S/o late Sh. Inder Lal Sharma,
R/o C-75, Gali No.3, Ganga Vihar,
Delhi-94. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Govt. of NCT of Delhi through
The Chief Secretary,
New Secretariat, IP Estate,
New Delhi.
2. The Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, New Delhi.
3. Deputy Director of Education,
North East Division,
Govt. of NCT of Delhi,
Yamuna Vihar, Delhi-53.
4. The Principal,
Govt. Boys Sr. Sec. School
No.1 Gondha, Delhi-53. . Respondents
(through Mrs. Harvinder Oberoi, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 02.05.2011 by which his pay in the higher pay scale (Rs.7500-250-12000) was fixed on grant of ACP benefits w.e.f. 21.12.2005. His prayer is to set aside this order and to direct the respondent to re-fix his pay w.e.f. 01.01.2006 after following the provisions of the CCS (Revised Pay) Rules, 2008.
2. Brief facts of the case are as follows:-
2.1 The applicant was appointed to the post of Trained Graduate Teacher (TGT) on 21.12.1981. He got his promotion to the post of Post Graduate Teacher (PGT) on 10.08.2001. He was entitled to the second financial upgradation under the ACP Scheme introduced in the year 1999 on completion of 24 years of service. Accordingly, he was granted ACP benefits w.e.f. 21.12.2005. The applicant was given the option for fixation of pay vide order dated 11.10.2006 of the respondents. The applicant gave the option that it should be fixed on 01.01.2006 when his next increment was falling due. The respondents granted the next increment under the pre-revised scale and fixed his pay after granting him the benefit of one notional increment as per rules. After so determining his pre-revised pay as on 01.01.2006 his pay in the revised scale was fixed. His grievance is that the increments which were granted to him as on 01.01.2006 should have been calculated on the basis of the provisions of the Revised Pay Rules and not on the basis of the old scale.
2.2 The applicant made a representation to the competent respondent authority on 20.11.2010. It was forwarded by the Principal of the School where he was working. The applicant made one more representation to the Deputy Director of Education on 20.12.2010. When there was no reply to his representations, he filed OA-571/2011 in which on 08.02.2011 the respondents were directed to take a decision on the grievance of the applicant within a specified time limit. It is the grievance of the applicant that the respondents instead of considering his grievance have re-fixed his pay in the same manner as was done earlier by their order dated 02.05.2011. The impugned order has followed the same logic and has granted both the annual increment as well as the notional increment in the old pay scale and determined his pay on that basis as on 01.01.2006 and then refixed it as per the provisions of Revised Pay Rules.
3. At the time of hearing, learned counsel for the applicant submits that the Revised Pay Rules though notified on 29.08.2008 is effective from 01.01.2006 and government servants are allowed revised pay on the basis of the Revised Pay Rules from 01.01.2006. The respondents should have followed Rule-13 of the aforesaid Rules which deals with fixation of pay on promotion on or after 01.01.2006. According to this rule, the increment equal to 3% of the pay should have been calculated in the revised pay and granted to the applicant instead of allowing him the benefit of increment in the old pay scale. Since he is getting the benefit of financial benefit w.e.f. 01.01.2006 the pay fixation should have been made following the provisions of Rule-13. Once his option invited and accepted by the respondents was for grant of pay fixation w.e.f. 01.01.2006, the respondents could not have applied the old pay scale in his case.
4. The respondents have taken the ground that the original pay fixation has been done consequent on grant of second ACP w.e.f. 21.12.2005. They drew our attention to the order dated 11.10.2006 where the date from which the ACP benefit was to be given has been indicated as 21.12.2005 (page-9 of the OA). The option was invited in terms of FR-22(1)(a)(i) and the applicant has given his option for the pay fixation from 01.01.2006. Accordingly, his pay was fixed on 01.01.2006. If there was any grievance against his pay fixation, the applicant should have challenged this order. Therefore, learned counsel submits that the present O.A. is barred by limitation.
5. On merit, it has been mentioned in the counter-affidavit that the applicant was given the first financial upgradaton, i.e. Senior Scale in TGT grade on completion of 12 years of service in that grade w.e.f. 21.12.1993. This was done pursuant to the recommendations of the Fourth Pay Commission. He got the promotion to the PGT grade (Rs.6500-10500/-) as on 18.10.2011. However, he was granted the second financial upgradation under the ACP Scheme on 21.12.2005 when he completed 24 years of regular service.
6. Learned counsel further submits that the pay scale of the applicant had to be determined in the pre-revised scale as on 01.01.2006 before it was revised to the new scale and fixation as per provisions of CCS(RP) Rules was made in the revised scales. The claim of grant of 3% increment is not applicable in his case as the financial upgradation was effective from 21.12.2005 although the fixation was made as per the option of the applicant. According to the respondents, the matter was referred to the Deputy Direction of Accounts and it was decided that the claim of the applicant is not justified and the pay fixation done earlier was correct after taking into account the advice of the Accounts Department. According to the respondents the claim of the applicant that his pay fixation made on 01.01.2006 should have followed the provisions of Rule-13 of CCS (RP) Rules, 2008 is misplaced.
7. We are not in a position to sustain the preliminary objection that this O.A. is barred by limitation by treating the original cause of action to have arisen on 11.10.2006 when the first pay fixation was made. Admittedly, the Revised Pay Rules were not in existence and there was no way how the applicant could have challenged that order which followed the provisions of FR-22(1)(a)(i). It is only after the Revised Pay Rules were notified that the applicant could have raised his claim. Admittedly, the Pay Rules were notified on 29.08.2008 and the first representation was made by the applicant was made on 20.11.2010.
8. Since the matter pertains to fixation of pay, it has been held by the Honble Supreme Court in the case of M.R. Gupta Vs. U.O.I. & Ors., 1995(5)SCC 628 that such a issue should be treated as a continuing wrong giving rise to a recurring cause of action every month and no limitation would apply. Following he law laid down by the Honble Supreme court, we have no hesitation in rejecting the preliminary objection of limitation.
9. The sole point canvassed by the learned counsel for the applicant is that the provisions of Rule-13 of CCS (Revised Pay Rules), 2008 should be followed while fixing the pay of the applicant consequent on grant of ACP benefit. As regards the contention of the respondents made in paragraph-5d of the counter-affidavit that the applicant had already got two benefits w.e.f. 21.12.1981 when the Senior Scale in TGT grade was given to him and the other when he was promoted to the PGT scale on 18.10.2001 and is not eligible for end financial upgradation is not the issue before us. Neither has the respondent authority taken this ground to deny 2nd financial upgradation. The grievance of the applicant is only about the fixation of his pay consequent on grant of 2nd ACP financial upgradation by the respondents. Therefore, the submissions about eligibility of the applicant to the Second ACP benefit are not germane to the issue before us.
9.1 Rule-13 of the aforesaid Rules, 2008 reads as follows:-
Fixation of pay on promotion on or after 1.1.2006-In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows:-
(i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay band will be stepped to such minimum as the caption suggests it is about fixation of pay on promotion on or after 01.01.2006. Admittedly, the ACP upgradation had taken place w.e.f. 21.12.2005 as seen from the Office Order dated 11.10.2006. The only question was about fixation of pay after taking into account the option of the applicant that it should be fixed after he got his annual increment on 01.01.2006. Admittedly, the upgradation took place from the pre-revised pay scale of Rs.6500-10500/- to the pre-revised higher pay scale of Rs.7500-12000/-. It is not the case that the upgradation was given in the revised pay scale which came into force from 01.01.2006. The new principle of calculating increment @ 3% was applicable in respect of Revised Pay Scale. The fixation of pay in the Revised Pay Scales can be made only after the pay of a government servant as on 01.01.2006 is determined on the basis of pre-revised scale. Therefore, the respondents determined first the pre-revised pay admissible to the applicant as on 01.01.2006 after taking into account the increment that he has earned and the notional increment which is admissible to him as per the pre-revised pay scale. It is not the case of the applicant that the promotion or the grant of ACP took place after the Revised Pay Rules had come into effect. It was only a question of fixation of pay as per his option in the pre-revised pay scale and his pay determined on pre-revised pay scale as on 01.01.2006 that forms the basis for the revision of pay according to Revised Pay Rules, 2008. For the aforesaid reasons, we do not see any infirmity in the impugned order. The O.A. is accordingly dismissed. No costs.
(Dr. A.K. Mishra) (G. George Paracken) Member (A) Member (J) /vinita/